The North Carolina Supreme Court held in State v. McGrady, __ N.C.___ (June 10, 2016), that Rule 702(a) of the North Carolina Rules of Evidence incorporates the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). That’s what the court of appeals had already said, so it isn’t a big surprise. In McGrady, the application of Daubert led the state supreme court to conclude that the trial court did not err in excluding testimony from an expert in law enforcement training about the defendant’s conscious and unconscious responses to a perceived threat from the victim. McGrady’s analysis opens the door for reconsidering the admissibility of many types of expert testimony previously admitted as a matter of course, including expert testimony from law enforcement experts involving scientific and medical principles.
Facts. Charles McGrady was indicted for first-degree murder in the shooting death of his cousin, James Allen Shore Jr., with whom he had an acrimonious relationship. Defendant McGrady admitted to shooting Shore, but claimed that he did so to defend himself and his adult son. At trial, McGrady sought to introduce the testimony of Dave Cloutier as an expert on “the science of the use of force.”
Procedural history. The trial court excluded all of the testimony under Rule 702(a). McGrady was convicted of first degree murder and appealed, arguing in part that the trial court abused its discretion by excluding Cloutier’s testimony. The court of appeals rejected McGrady’s argument and found no error in his conviction. The state supreme court granted discretionary review and affirmed the court of appeals.
Framework. The state supreme court explained that the 2011 amendments to Rule 702(a) incorporated the Daubert standard. Thus, expert testimony must now satisfy three requirements to be admissible.
First. It must be based on scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue. This requires that expert testimony relate to an issue in the case and that it provide insight beyond the conclusions that jurors can readily draw from their ordinary experience.
Second. The witness must be qualified as an expert by knowledge, skill, experience, training, or education. Expertise can come from practical experience as much as from academic training. (Remember the voir dire of Mona Lisa Vito in My Cousin Vinny?) But the content matters. Different fields require different knowledge, skill, experience, training and education.
Third. Expert testimony must be based on sufficient facts or data and must be the product of reliable principles and methods. The expert must also have applied the principles and methods reliably to the facts of the case.
The McGrady court noted that the three-step framework itself is not new. The level of rigor that courts must use to scrutinize expert testimony, which “‘can be both powerful and quite misleading’ to a jury,” has increased, however, pursuant to adoption of the Daubert standard. Slip op. at 18 (quoting Daubert, 509 U.S. at 595).
Testimony at issue. Cloutier, a retired law enforcement officer and former North Carolina Justice Academy instructor and director, intended to provide expert testimony on the following:
- Based on the pre-attack cues and use of force variables in the interaction between McGrady and Shore, McGrady’s use of force was a reasonable response to an imminent, deadly assault that he perceived.
Cloutier described pre-attack cues as including assault; retrieving, displaying or employing a weapon; making threats; and using profanity. He said “use of force variables” were circumstances that influenced a person’s decision about the type and degree of force needed to repel a perceived threat. They included age, gender, size, and number of individuals involved; the number and type of weapons present; and environmental factors. The trial court concluded that testimony about these matters would not assist the jury because these were matters within the jurors’ common knowledge. The supreme court upheld the trial court’s determination, deeming it reasonable and not an abuse of discretion.
- McGrady’s actions were consistent with those of someone experiencing the sympathetic nervous system’s “fight or flight” response.
Cloutier stated that instinctive survival responses to fear “can activate the body’s sympathetic nervous system and crate a . . . fight or flight response.” Slip op. at 23. According to Cloutier, the defendant’s perception of an impending attack would cause a surge of adrenalin in the body that would activate uncontrollable survival responses, including “perceptual narrowing.” He said that the nervous system’s response to a threat can also cause “fragmented memory.”
Cloutier testified that he was not a medical doctor but that he had studied the basics of the brain in general psychology courses in college. He said he had read articles and been trained by medical doctors on how adrenalin affects the body, had personally experienced perceptual narrowing, and had trained police officers and others on how to deal with these stress responses.
The trial court excluded this testimony on the basis that Cloutier was not qualified to testify about how something affects the nervous system.
The McGrady court said that “though Rule 702(a) does not create an across-the board requirement for academic training or credentials,” the trial court did not abuse its discretion by requiring a witness “who intended to testify about the functions of an organ system to have some formal medical training.” Slip op. at 25. “[E]xpertise can come from practical experience,” but “that does not mean that a trial court can never require an expert witness to have academic training.” Id.
The supreme court noted that Cloutier has “strong practical experience in police training and tactics but not much medical expertise in human physiology.” Thus, the McGrady court reasoned that “while he may have been eminently qualified to testify about standard police practices regarding the use of force, he was far less qualified to testify about the sympathetic nervous system” and it was not an abuse of discretion for the trial court to exclude his testimony because he lacked medical or scientific training.
- Reaction times explain why some of the shots hit Shore in the back.
Finally, Cloutier testified on voir dire that because a person can turn his torso in less time than it takes to perceive a threat and fire a weapon, McGrady could have perceived a threat from Shore while Shore was facing him but still end up shooting Shore in the back.
Cloutier’s testimony included statistics on average reaction times and his opinion about how those statistics applied to this case. The trial court concluded that Cloutier’s proffered testimony about reaction times did not satisfy the reliability requirements in Rule 702(a). Cloutier did not provide the court with known or potential error rates for the studies he relied upon. He acknowledged that variables could affect his opinions, but he had not considered some known variables. The supreme court found no abuse of discretion in this ruling as well, stating that the factors the trial court focused upon were reasonable measures of reliability.
McGrady is significant. Three aspects of McGrady strike me as particularly significant for future cases.
- First, McGrady focuses on the requirement that the witness be qualified, noting that the trial court can screen the evidence based on the expert’s qualifications and that degrees or certifications may play a role. In past cases, courts have sometimes deemed a witness a qualified expert simply because he or she knows more than the trier of fact and have de-emphasized the role of formal education. See, e.g., State v. Norman, 213 N.C. App. 114 (2011) (deeming head of Forensic Test for Alcohol branch of NC DHHS an expert in the effects of drugs on human performance and behavior despite witness’s lack of a formal degree or certification in the fields of physiology and pharmacology); State v. Steelmon, 177 N.C. App. 127 (2006) (deeming law enforcement officer an expert in the subjects of lividity and death even though he was not a medical expert).
- Second, the McGrady court’s statement that the law enforcement training of the witness rendered him “far less qualified to testify about the sympathetic nervous system” makes me wonder whether courts in future trials will be reluctant to allow law enforcement officers to testify to expert opinions based on scientific or medical principles. If so, McGrady’s loss could turn out to be a big win for defendants generally.
- Finally, while McGrady announced a new, more-rigorous standard for expert testimony, the court also emphasized the deference afforded a trial court’s determinations regarding the admission of expert testimony. Time will tell whether these principles may successfully co-exist or whether one erodes the other.